P. v. Williams

Filed 1/31/07  P. v. Williams CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from an order of the Superior Court of San Diego County, Charles R. Gill, Judge.  Affirmed.

            Donald Van Williams pleaded guilty to one count each of perjury by declaration (Pen. Code, §  118, subd. (a),^[1] conspiracy (§  182, subd. (a)(1)), filing a false instrument (§  115, subd. (a)), and grand theft (§  487, subd. (a)) in connection with his efforts to transfer title to a residence to himself and his wife.  The court sentenced Williams to a determinate prison term of 5 years, 8 months in prison, and, following a contested restitution hearing, ordered him to pay direct victim restitution of $69,465.39 to the residence's owner, Christine Minnifield, and $12,582.57 to Jesse Trujillo, to whom Williams attempted to sell the property.  On appeal, Williams contends the restitution award to Minnifield for loss of rental income and payment of certain expenses is not supported by a sufficient factual foundation as to the property's rental value, and other restitution for gross profits would result in a windfall to the victim.  He further contends we should modify the restitution award for attorney fees because there is insufficient evidence to establish the fees were reasonable and for legal work related to his unlawful conduct.  We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

            In January 2002, Williams and his wife forged an agreement that appeared to transfer title to a residence at 1441 Kim Place in Chula Vista (the property) to themselves.  The owners of record at the time were Christina Minnifield and her husband James Minnifield.  The Minnifields were in the process of divorcing and James Minnifield, who had befriended Williams, signed documents quitclaiming the property to Williams unbeknownst to Christina Minnifield and without her true signature. 

            In May 2003, Williams filed a quiet title action against the Minnifields and obtained a default judgment against them before Superior Court Judge Luis Vargas.  However Christina Minnifield obtained an order voiding the property transfer from the judge presiding over her divorce proceeding in El Cajon Superior Court, and later obtained an order setting aside the default judgment entered by Judge Vargas.  She then initiated an unlawful detainer lawsuit against Williams and his wife, obtaining a judgment of possession on July 7, 2003. 

            The next day, Williams and his wife purported to sell the property to Jesse Trujillo.  Trujillo eventually filed his own unlawful detainer lawsuit to evict Williams and his wife from the property, and at some point he interpleaded into the Minnifields' divorce action. 

            In January 2004, Williams and his wife filed a third quiet title complaint.  Thereafter, Williams was arrested and charged in a consolidated indictment and complaint with multiple counts of conspiracy, disobeying a court order and perjury, as well as counts for grand theft, grand theft by false pretenses, and filing a false instrument.  He eventually pleaded guilty to one count each of perjury, conspiracy, filing a false instrument and grand theft.  The court sentenced Williams in February 2005 and set a formal restitution hearing for April 2005.  The probation report prepared for sentencing recommended that Williams be ordered to pay direct restitution of $60,924.62 to Minnifield and $12,650 to Trujillo.^[3] 

            On April 22, 2005, the court conducted the restitution hearing.  Minnifield and Trujillo filed declarations with supporting documents setting forth their respective restitution claims of $69,465.39 and $17,582.57 in losses assertedly stemming from Williams' conduct.  In part, Minnifield claimed she had lost $16,740 in rental income from the property from March 2003 to March 2004, averring:  " I was unable to rent the Kim Place property for 13 months due to the excessive damage caused by the Williams' [sic] and because of attorney fees, I was unable to fix all of the damage at once.  I attempted to sell [the property].  The sale fell through because title insurance could not be obtained because of the liens recorded against the property in the Defendants' names."   She sought recovery of $10,196.44 in property management fees, stating:  " Cal Sur Property Management was paid for management fees, SDG& E, and repairs that were necessary to be completed to make the property habitable.  The kitchen was completely torn out by the Defendants.  There were no cabinets, sink or plumbing.  All of these items had to be replaced.  The walls had holes and had to be repaired and painted.  Carpet and vinyl were destroyed and had to be replaced."   Minnifield attached invoices assertedly supporting her claim.  Minnifield also sought $5,817.92 in escrow fees, averring:  " West Coast Escrow was paid $5,817.92 when the sale 1441 Kim Place [sic] could not be completed because title insurance could not be obtained due to the numerous liens that have been recorded against the property for the Williams' debts."   Finally, Minnifield sought to recover $23,987.22 in attorney fees incurred by John Anderson, who according to Minnifield made " numerous appearances in the South Bay and El Cajon Courts to respond to various court hearings that were necessary to protect my properties."          Williams joined his co-defendant's objections to the adequacy of Minnifield's showing.  Counsel objected that the declarations' attachments were unauthenticated and that the declaration as to rental value was lacking in specificity and clarity in that it did not specify the fair value of the property or its actual rental value.^[4]  Counsel also challenged Minnifield's request for management fees, asserting it was " not clear whether those items [cabinets, sinks, plumbing] were in there before Williams got involved in this.  So in other words, there would have been a delay or difficulty . . . with or without the involvement of Mr. and Mrs. Williams."   Based on the declarations, supporting documentation and the arguments of counsel, the court awarded restitution to Minnifield of $69,465.39 and Trujillo of $12,582.57.  Williams filed the present appeal.^[5] 

DISCUSSION

I.  Legal Principles

            " Section 1202.4 governs a trial court's authority to order a criminal defendant to pay restitution directly to a crime victim.  Section 1202.4, subdivision (a)(1) states:  '[i]t is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.' "   (People v. Fulton (2003) 109 Cal.App.4th 876, 882.)  Section 1202.4's implementing subdivision, subdivision (f), provides:  " [I]n every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the victim make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any

other showing to the court.  . . .  The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record. . . .  [¶]  (1)  The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution.  The court may modify the amount, on its

own motion or on the motion of the district attorney, the victim or victims, or the defendant . . .  [¶]  . . .  [¶]  (3)  To the extent possible, the restitution order shall be prepared by the sentencing court, shall identify each victim and each loss to which it pertains, and shall be of a dollar amount that is sufficient to fully reimburse the victim

or victims for every determined economic loss incurred as the result of the defendant's criminal conduct, including, but not limited to, all of the following:  [¶]  (A)  Full

or partial payment of the value of stolen or damaged property . . .  [¶ ]  . . .  [¶]  . . . 

(D)  Wages or profits lost due to injury incurred by the victim . . .  [¶]  . . .  [¶]  . . . 

(H)  Actual and reasonable attorney's fees and other costs of collection accrued by a private entity on behalf of the victim."

            Sentencing judges are given virtually unlimited discretion regarding the information they can consider and the source of that information; this is so because a hearing to establish restitution " 'does not require the formalities of other phases of a criminal prosecution.' "  (People v. Hove (1999) 76 Cal.App.4th 1266, 1275.)  For example, " 'the trial court is entitled to consider the probation report when determining the amount of restitution.' "   (People v. Keichler (2005) 129 Cal.App.4th 1039, 1048.)  And " statements by the victims of the crimes about the value of the property stolen constitute 'prima facie evidence of value for purposes of restitution.' "   (Ibid.) 

II.  Standard of Appellate Review

            We review a trial court's restitution order for abuse of discretion.  (People v. Keichler, supra, 129 Cal.App.4th at p. 1045.)  Under this standard, " [w]hen considering a trial court's restitution determination, we consider whether it is arbitrary, capricious, or beyond the bounds of reason under all the circumstances."   (People v. Hove, supra, 76 Cal.App.4th at p. 1275.)  " Thus, while the amount of restitution cannot be arbitrary or capricious, '[t]here is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action. . . .' "  (People v. Ortiz (1997) 53 Cal.App.4th 791, 800, fn. omitted.)    
            When a defendant on appeal challenges the sufficiency of the evidence to support a trial court's restitution order, we apply the substantial evidence standard of review.  (People v. Baker (2005) 126 Cal.App.4th 463, 468-469.)  Under that standard, the

" 'power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,' to support the trial court's findings."  (Estate of Leslie (1984) 37 Cal.3d 186, 201.)  " Further, the standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt.  [Citation.]  'If the circumstances reasonably justify the [trial court's] findings,' the judgment may not be overturned when the circumstances might also reasonably support a contrary finding.  [Citation.]  We do not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient evidence to support the inference drawn by the trier of fact."   (People v. Baker,at p. 469.)

II.  Restitution for Lost Rental Income and Management Expenses

            Williams contends the trial court abused its discretion in awarding Minnifield restitution for $16,740 in lost rental income for the property.  Pointing to the proof requirements set forth in Evidence Code sections 813, subdivision (a)(2), 814 and 817 on the receipt of opinion testimony as to a property's fair market or lease value,^[6] he suggests there was no factual foundation for Minnifield's declaration; that the court received no evidence that explained how Minnifield arrived at the rental loss, but only considered Minnifield's bare assertion of rental value without reference to rents received before March 2003, or the monthly rent of her tenant who took possession in April of 2004.  Williams further asserts it is not clear from the record whether Minnifield is including lost profits from her inability to sell her property in her lost rent claim, or if she is seeking " double reimbursement" of $5,817.92 paid to the escrow company.  Finally, he argues the court gave Minnifield a " windfall" by awarding her restitution for gross rents as well as for $1,291.82 of the Cal Sur Property Management fees that do not appear to have been incurred as a result of defendants' conduct, but " appear to be normal expenses that would be incurred by a landlord who owns a property and is attempting to rent it out" and typically would come out of gross rents.^[7] 

            In making these challenges to the court's restitution order for lost rental income, Williams does not point to any evidentiary showing he made at the restitution hearing to rebut Minnifield's statements, only counsel's objections to the foundation for her declaration.  Thus, his general contention as to the lack of foundation for Minnifield's testimony as to fair rental value fails under the principle, set forth above, that a property owner's statements of value that are recapitulated in the probation report should be accepted as prima facie evidence of value.  As stated in People v. Keichler, supra, 129 Cal.App.4th at p. 1048:  " When the probation report includes information on the amount of the victim's loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount.'  [Citation.]  Absent a challenge by the defendant, an award of the amount specified in the probation report is not an abuse of discretion."   (Italics added; see also In re S.S. (1995) 37 Cal.App.4th 543, 547 [" ' " A defendant's due process rights are protected if he is

given notice of the amount of restitution sought and an opportunity to contest that amount. . . . " ' " ].)

            Under these settled principles, Minnifield's unchallenged status as the property owner provided the necessary foundation for her claim of value, and in turn entitled the trial court to infer from her declaration that the fair monthly rental value of her property was approximately $1,287 based on her claim for $16,740 and her statement that she was unable to rent the property for 13 months.  Williams, who was on notice of Minnifield's claim of lost rental income from the probation officer's report, was required to bring forth evidence either challenging Minnifield's status as owner, or demonstrating that $1,287 was not a reasonable rental value for the property in question.  This he did not do.  We conclude the court's award has a rational basis and is supported by substantial evidence; it is not arbitrary or capricious and thus is not an abuse of discretion. 

            As for Williams's claim that the court's restitution order potentially constituted " double reimbursement" for $5,817.92 paid to an escrow company stemming from an unfulfilled sale, that particular claim was not made by Williams or his codefendant at the restitution hearing, and we will not consider it for the first time on appeal.  (See In re S.S., supra, 37 Cal.App.4th at pp. 547-548 [failure to raise specific objections precludes raising them for first time on appeal]; People v. Valtakis (2003) 105 Cal.App.4th 1066, 1071 & fn. 3; People v. Scott (1994) 9 Cal.4th 331, 354 [" claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner" ].)  Counsel stated only that he had a " big question mark" about the escrow fees; that it was " just not enough information for me to figure out what exactly happened there" in that there was no information about the basis and perimeters of the sale, the timing of the sale and the buyer's identity.  Counsel summarized his concern by saying Minnifield's request " would [not] survive the basis of a civil action.  Certainly would not be automatically recoverable if there was a civil action."   These comments do not preserve Williams's double reimbursement challenge on appeal.

            Finally, we reject Williams's contention that the court gave Minnifield a windfall when it awarded her $1,291.82 in various electricity, advertising, property management and bank check expenses.  Williams's contention is in part premised on the assertion that the record contains evidence that Minnifield employed a property management firm to run the rental property before March 2003, and thus some of these expenses appear to be normal expenses incurred by Minnifield as a landlord regardless of his criminal conduct.  However, the cited record reference in Williams's brief is to mere argument made in the People's statement in aggravation, not to evidence of any such fact.  Further, the point was not raised to the trial court below; at the hearing, counsel focused on Minnifield's statements about the absence of cabinets, sinks,  plumbing, and " things of that nature."   In any event, the trial court could reasonably conclude, absent evidence to the contrary, that Minnifield incurred these property management and other expenses either in seeking a renter for the property, or because she did not have renters paying the electricity bills.  Williams made no showing to the contrary in the trial court.  Further, Williams's argument, which is essentially that Minnifield should be limited to her net profit because such items are generally paid out of gross rents, was rejected by the court in People v. Thygesen (1999) 69 Cal.App.4th 988 when it held the term " 'profit,' in the case of a claim for restitution arising out of a commercial loss, is reasonably interpreted as meaning 'gross profit.' "   (Id. at p. 994.)  An argument otherwise would " run[] counter to the legislative intent to make a victim whole for every economic loss."  (Ibid.)   

III.  Claim for Attorney Fees as Restitution

            Williams challenges the court's award of $23,987.72 in attorney fees to Minnifield's attorney John Anderson on grounds the evidence presented at the restitution hearing did not establish that the fees were either reasonable or incurred solely by Minnifield to recover economic losses.  Specifically, Williams contends that " some of the fees appear to be unreasonable expenses incurred for non-legal tasks but billed at the highest attorney rate on the invoices."   He points to items billed at the attorney's rate of $340 per hour, namely:  (1) $1,700 billed for attempting to attend an ex parte hearing that was continued because the department was closed and for attending the rescheduled ex parte hearing; (2) $425 billed for attending another ex parte hearing that was ultimately postponed; (3) $481.67 for picking up a copy of a filing; $510.00 for filing documents in El Cajon; and (4) an additional charge for driving to Chula Vista to pick up a transcript billed at the $340 hourly rate. 

            Importantly, Williams does not dispute the causal effect of his criminal conduct on Minnifield's need to retain counsel to handle the various legal proceedings that took place, nor does he meaningfully contend attorney Anderson spent time or incurred fees to recover an item of loss that is not recoverable in restitution.  Indeed, his counsel in the trial court below only asserted a specific objection as to the lack of authentication of the documents and invoices attached to Minnifield's declaration.  Otherwise, counsel's complaint as to Minnifield's evidence was only general, i.e., that Minnifield's declaration was confusing and unclear as to which actions her attorneys were representing her.^[8] 

            It is worthwhile to repeat that we review the trial court's broad authority in setting the amount of restitution for abuse of discretion.  (People v. Keichler, supra, 129 Cal.App.4th at p. 1045; People v. Ortiz, supra, 53 Cal.App.4th at p. 800.)  " ' " 'A victim's restitution right is to be broadly and liberally construed.'  [Citation.]  ' " When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court." ' " ' "  (People v. Keichler, at p. 1045, quoting People v. Baker, supra, 126 Cal.App.4th at p. 467.)  The amount of restitution must be " sufficient to fully reimburse the [victim] for every determined economic loss incurred as a result of the defendant's criminal conduct" (§ 1202.4, subd. (f)(3)) including actual and reasonable attorney fees.  Further, the restitution statute uses the language " including, but not limited to [the enumerated losses]."   (§ 1202.4, subd. (f)(3).)  Thus, " a trial court may compensate a victim for any economic loss which is proved to be the direct result of the defendant's criminal behavior, even if not specifically enumerated in the statute."   (People v. Keichler, supra, 129 Cal.App.4th at p. 1046.) 

            Here, Minnifield stated in her declaration that her losses were legal fees incurred to regain title to the property and remove Williams and his codefendant by eviction, and she stated she incurred additional legal fees when the defendants fraudulently sold her property to Trujillo.  Williams did not dispute with evidence or legal argument below, and he does not on appeal, that Minnifield incurred an economic loss when she lost title to her property, and that attorney Anderson assisted her in seeking to recover lawful title against both Williams's and Trujillo's claims, or at least furthered the potential of recovering title.  The services of attorney Anderson were  " 'proper, necessary, and a logical result of Williams's criminal conduct' " and " [u]nder these circumstances, to deny [Minnifield] the cost of her attorney fees is to fail to fully reimburse [her] for [her] economic loss."   (People v. Maheshwari (2003) 107 Cal.App.4th 1406, 1410.)

            Given the absence of any showing that Minnifield's counsel's time was not actually spent on matters that were a logical result of appellants criminal conduct, we cannot conclude the court's order was so unreasonable, or so arbitrary and capricious, to constitute an abuse of discretion.      

DISPOSITION

            The order is affirmed.

O'ROURKE, J.

WE CONCUR:

                   HUFFMAN, Acting P. J.

                                          NARES, J.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line attorney.

^[1]           All statutory references are to the Penal Code unless otherwise indicated.

^[2]           Because Williams pleaded guilty, we set out the underlying facts from the probation officer's report.  References to Minnifield are to Christina Minnifield. 

^[3]           The probation officer reported that the defendants had stripped the kitchen of the property and that Minnifield had spent $15,000 to $17,000 to repair the damage; that she lost one year's worth of rent payments totaling $16,740; and she had incurred $27,184.62 in attorney fees as of his report.  He recommended Williams pay direct restitution to Minnifield in the sum of $60,924.62.  On appeal, Williams does not contend that he did not receive sufficient notice of the total restitution sum of $69,465.39 Minnifield ultimately sought at the restitution hearing.

^[4]           In part, counsel stated:  " [O]n Ms. Minnifield's declaration, first off, any of the attachments, I don't believe are properly before this court.  They're certainly not authenticated.  I don't even think they have been registered . . . .  [¶]  . . .  I think the declaration is lacking in specificity and clarity in terms of what that's for.  Does not even tell us what's a fair value of that property.  Does not tell us the actual rental value.  It tells us, if we assume it's the period March 2000 through to March 2004, it references 13 months.  Although, I count 12 months in that – we take 13 and divided by $16,740, divide by 13, and that should be a fair monthly, or fair market value.  But it's not established before the court.  And I don't think an order based on this declaration, as I said, it's four, line $16,000.  " I was unable to rent it."   Does not say why.  It does not say what the value is.  And I would ask that that also not be included."

^[5]           Williams challenges only components of the restitution awarded to Minnifield.

^[6]           Evidence Code section 813 provides:  " (a)  The value of property may be shown only by the opinions of any of the following:  . . .  [¶]  . . .  [¶]  (2)  The owner or spouse of the owner of the property or property interest being valued."   Evidence Code section 814 provides:  " The opinion of a witness as to the value of property is limited to such an opinion as is based on matter perceived by or personally known to the witness or made known to the witness at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion as to the value of property, including but not limited to the matters listed in [Evidence Code s]ections 815 to 821, inclusive, unless a witness is precluded by law from using such matter as a basis for an opinion."   Evidence Code section 817 provides:  " (a)  . . . [W]hen relevant to the determination of the value of property, a witness may take into account as a basis for an opinion the rent reserved and other terms and circumstances of any lease which included the property or property interest being valued or any part thereof which was in effect within a reasonable time before or after the date of valuation . . . ."

^[7]           These fees are broken down as:  " [E]lectricity payments to SDG& E for November and December 2003 in the amounts of $73.54 and $25.13 respectively; advertising in the Union-Tribune, Reader, and Uptown Publications in the amounts of $374.40, $144.00 and $16.00 respectively; management fee for six months on January 15, 2004[,] to Calsur [sic]in the amount of $625.00; and a bank fee with check printing charge, and a second bank fee in the amounts of $25.75 and $8.00, respectively."  

^[8]           On this point Williams's codefendant's counsel stated:  " And within the documents it seems that there is confusion.  We know that there were other types of actions that the law firm was representing Ms. Minnifield on.  I think they attempted to back out that which was related to Kim Street property.  But it's still not clear if Ms. Minnifield was here or her lawyer was here.  Won't be able to clear that up without it being clear."